On the big questions, Simon Batifort and J. Benton Heath are plainly right. Dogmatic presumptions about the necessary effect of particular clauses and woolly notions of systemic teleology may distract the interpreter from the task of finding the meaning that represents the intentions of the parties, best articulated in the specific terms chosen. Customary rules on treaty interpretation, reflected in Articles 31 and 32 of the Vienna Convention on the Law of Treaties (VCLT), are meant to be flexibly adapted to the case in hand. But in applying their insight to the small print of the interpretative question, Batifort and Heath are less persuasive. Can most favored nation (MFN) clauses be generally relied upon to, as they put it, “import” substantive standards of treatment of investment protection law? The authors are critical of the apparent consensus in favor of an affirmative answer—they call it “conventional wisdom”—and in this regard seem to me to be significantly overstating their case.

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MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom”

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MFN Clauses and Substantive Treatment: A Law of Treaties Perspective of the “Conventional Wisdom”

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6 To borrow from the still unsurpassed explanation of MFN clauses in Paul Reuter, Introduction to the Law of Treaties 106 (José Mico & Peter Haggenmacher trans., 1995).

7 I am unfamiliar with the “top-down” and “bottom-up” language that structures the argument, and therefore have translated it into the technical VCLT parlance (without misrepresenting it, hopefully).

8 It is worth noting, as an example of earlier perceptions, that the finest law of treaties lawyer of the last century argued the greatest MFN clause case in the same terms challenged by the authors. SeeAmbatielos Case (Greece v. UK), 1953 ICJ Pleadings 406 (Mar. 26, 1953) (Fitzmaurice on behalf of the UK) (“[O]ur adversaries have at various times reproached us for objecting to their invocation of other treaties … on the ground that we did the same thing in the Anglo-Iranian Oil Company case. But of course, the truth is, we have no objection of principle to the invocation of other treaties, provided they are relevant. We have no objection to the process as such.”).

20Cf. Draft Conclusions on Identification of Customary International Law, Int'l Law Comm'n, Report on the Work of the Sixty-Eighth Session, UN Doc. A/71/10, at 100 (2016) (Draft Conclusion 10, Commentary 7); Draft Conclusions on Subsequent Agreement and Subsequent Practice in Relation to the Interpretation of Treaties, id. at 122 (Draft Conclusion 10(2)).